Citation Nr: 0029777
Decision Date: 11/13/00 Archive Date: 11/16/00
DOCKET NO. 97-18 310 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased disability evaluation for right
tibial and fibular fracture residuals including right leg
shortening and peroneal and tibial nerve neuropathies,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran had active service from December 1965 to January
1975. This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 1996 rating decision of the New
Orleans, Louisiana, Regional Office (RO) which denied an
increased disability evaluation for the veteran's
service-connected right tibial and fibular fracture residuals
including right leg shortening. In May 1997, the RO
recharacterized the veteran's right tibial and fibular
fracture residuals as right tibial and fibular fracture
residuals including right leg shortening and peroneal and
tibial nerve neuropathies and assigned a 30 percent
evaluation for that disability. In April 1998, the Board
remanded the veteran's claim to the RO for additional action.
In January 2000, the RO, in pertinent part, granted service
connection for right ankle degenerative joint disease;
assigned a 20 percent evaluation for that disability; and
effectuated the award as of June 9, 1998. The veteran has
been represented throughout this appeal by the Disabled
American Veterans.
REMAND
The provisions of 38 C.F.R. § 4.68 (1999) direct that the
combined rating for disabilities of an extremity shall not
exceed the rating for the amputation at the elective level,
were amputation to be performed. For example, the combined
evaluations for disabilities below the knee shall not exceed
the 40 percent evaluation provided by 38 C.F.R. § 4.71a,
Diagnostic Code 5165 (1999). The RO may not have considered
the applicability of 38 C.F.R. § 4.68 (1999) to the veteran's
claim for an increased evaluation for his post-operative
right tibial and fibula fracture residuals.
In reviewing a similar factual scenario, the United States
Court of Appeals for Veterans Claims (Court) has held that:
... when, as here, the Board addresses in
its decision a question that had not been
addressed by the RO, it must consider
whether the claimant has been given
adequate notice of the need to submit
evidence or argument on that question and
an opportunity to submit such evidence
and argument and to address that question
at a hearing, and if not, whether the
claimant has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
Accordingly, this case is REMANDED for the following action:
The RO should reevaluated the veteran's
claim for an increased evaluation for his
right tibial and fibular fracture
residuals including right leg shortening
and peroneal and tibial nerve
neuropathies with express consideration
of the applicability of 38 C.F.R. § 4.68
(1999). If the veteran's claim remains
denied, the RO should then issue a
supplemental statement of the case to the
veteran and his accredited representative
which addresses the applicability of 38
C.F.R. § 4.68 (1999).
The veteran is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran's claim must be afforded expeditious treatment by
the RO. The law requires that all claims that are remanded
by the Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See the Veterans' Benefits Improvement Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38
U.S.C.A. § 5101 (West 1991 and Supp. 1998) (Historical and
Statutory Notes). In addition, the Veterans Benefits
Administration's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO is to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV. Paras. 8.44-8.45 and 38.02-38.03.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration if appropriate. The purpose of this
REMAND is to allow for due process of law. No inference
should be drawn from it regarding the final disposition of
the veteran's claim.
J. T. Hutcheson
Acting Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).
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